Legal Services

Guardianship

Guardianship is necessary when a person no longer has the ability to make decisions for himself, or to make his wishes known. Signing a power of attorney isn’t an option anymore, because the person does not understand what he is signing. Two cases are filed with the court to address two issues: first, a confidential mental health case determines whether the person has the capacity make decisions. The other case determines who will be appointed as the guardian.

When Guardianship is Necessary

Guardianship is the right option when there is an elderly person or an adult with a disability who cannot make their own decisions who needs someone to make financial and healthcare decisions on her behalf. The role of an appointed guardian is similar to the role of a person who is appointed in a power of attorney or a healthcare surrogate, but the process is different and the guardian must report to the court each year and to make certain types of decisions.

Overview of Guardianship Process

Step 1: Talk with an Attorney.

Discuss the circumstances of the case, and if a guardianship case is the right choice, the attorney will file two cases with the court.

Step 2: The Court Cases.

Issue 1: Is the person incapacitated? To determine this, the court appoints an attorney to represent the incapacitated person, as well as three doctors/mental health professionals to examine the person and give an analysis and recommendation to the court.

Issue 2: Who will be the guardian? Even in an uncontested case, an applicant for guardian must sign an oath, submit an application, be fingerprinted and background checked by the FDLE, and must take an eight-hour guardian education course. In cases where more than one person would like to serve as guardian, the judge will make a choice, based on testimony and evidence, as to what is in the incapacitated person’s best interest.

Step 3: Managing the Guardianship.

Once the guardian is appointed, he or she will organize and account for all assets and income of the incapacitated person as of the start of the guardianship. A plan for physical health, mental health, social aspects, and other quality of life issues is also submitted to the court. An accounting and a plan are then submitted annually. Certain transactions may require specific court order (such as selling the incapacitated person’s home, paying fees of the attorneys or guardian, or placing the incapacitated person in a long-term care facility).

Who Becomes the Guardian if There’s No Family?

If the incapacitated person doesn’t have a family member of friend who is able or willing to take on the role of guardian, often a professional guardian will fill this role. A guardian has extensive responsibilities and is accountable to the court system for each action.

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